MEXICO Law and Practice Contributed by: Carlos Hernandez, Roxana Aispuro and Luis Emilio Moncada, BC&B Law & Business
means or systems to preserve its confidentiality and/or restricted access to it. The FLPIP does not specify what kind of means or systems can be adopted, it depends on the resources of the company or institution and the nature of the trade secret. Practical examples of means or systems are: • marking the information related to a trade secret as confidential; • keep the information in offices or warehouses with controlled or restricted access; • technological security means such as the use of passwords, facial recognition, or finger - prints; and • signature of contracts or confidentiality and non-disclosure agreements with the person The disclosure of a trade secret to employees must be made under the signature of an employ - ment contract that includes clauses regulating the disclosure of confidential information and trade secrets and/or under the signature of a specific confidentiality and non-disclosure agreement. It is important to mention that, in practice, it must be an obligation of the employ - er to warn the employee that – as part of their activities – they will have access to confidential information and trade secrets of the company. Article 166 of the FLPIP establishes that any per - son who (by reason of their work, employment, position, professional performance or business relationship) has access to a trade secret – the confidentiality of which they have been warned about – must refrain from disclosing it without the consent of the person who exercises legal control over it or of its authorixed user. who has access to trade secrets. 1.6 Disclosure to Employees
Additionally, Article 167 of the FLPIP mentions that any natural or legal person that hires a work - er who is working or has worked – or a profes - sional, adviser or consultant who provides or has provided services to another person – with the intention of obtaining trade secrets from the other person will be considered liable under the terms of the law. A natural or legal person who obtains information that includes a trade secret by any illicit means will also be liable. 1.7 Independent Discovery According to FLPIP only the misappropriation of a trade secret is considered as a violation of the law. Section II of Article 163 of the FLPIP defines misappropriation as the acquisition, use or dis - closure of a trade secret in a manner contrary to good practices and customs in industry, com - merce and services that implies unfair competi - tion. This includes the acquisition, use or dis - closure of a trade secret by a third party who knew, or had reasonable grounds to know, that the trade secret was acquired in a manner con - trary to said practices and customs. Moreover, Article 164 of the FLPIP establishes what is not considered misappropriation: • the independent discovery or creation of information claimed as trade secret; • the observation, study, disassembly or testing of a product or object that has been made available to the public or that is lawfully in the possession of the person obtaining the infor - mation, provided that they are not subject to any obligation of confidentiality regarding the trade secret; or • the acquisition of information from another person in a legitimate manner, without obliga -
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